Gujarat High Court
Siddhraj Infra Private Limited vs Maganbhai Popatbhai Parmar & 12 on 11 March, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/CA/12037/2015 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 12037 of
2015
In SPECIAL CIVIL APPLICATION NO. 17126 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of No India or any order made thereunder ?
========================================================== SIDDHRAJ INFRA PRIVATE LIMITED....Applicant(s) Versus MAGANBHAI POPATBHAI PARMAR & 12....Respondent(s) ========================================================== Appearance:
MR MIHIR THAKORE, SR. ADVOCATE WITH MR PARTHIV B SHAH, ADVOCATE for the Applicant(s) No. 1 DS AFF.NOT FILED (N) for the Respondent(s) No. 7 , 11 - 12 MR JITENDRA M PATEL, ADVOCATE for the Respondent(s) No. 13 MR KAUSHAL D PANDYA, ADVOCATE for the Respondent(s) No. 1 - 5 MR BHARGAV PANDYA, AGP for the Respondent(s) No. 6, 8 - 10 MR SATYAM CHHAYA, ADVOCATE for Respondent(s) No. 7 ========================================================== CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 11/03/2016 Page 1 of 16 HC-NIC Page 1 of 16 Created On Sat Mar 12 02:21:08 IST 2016 C/CA/12037/2015 CAV ORDER CAV ORDER The captioned is a Civil Application filed under Article 226(3) of the Constitution by the applicant-respondent No.9 in the main petition, for vacating the interim relief.
2. In main Special Civil Application No.17126 of 2015, in which the petitioner has prayed for a direction to cancel the development permission granted to respondent No.9 by the Town Planning Authorities, ad-interim relief was granted at the time of issuance of notice on 20th October, 2015 by directing to maintain status quo in respect of subject matter land.
After hearing the parties in the aforesaid Civil Application, the Court modified the interim relief by order dated 30th October, 2015, which is extracted hereunder, "3. The present application is filed for vacation of the order of status-quo under Article 226(3) of the Constitution of India. Considering the facts of this case, the order of status-quo is maintained qua the area comprising of original survey No.176 and original survey No.181, Mouje Sargasan which is included in the area of Town Planning Scheme (GUDA) No.7 (Sargasan- Kudasan-Por)."
2.1 Against the first mentioned order dated 20th October, 2015, respondent No.9 filed Letters Patent Appeal No.1451 of 2015. For challenging the aforesaid order dated 30th October, 2015 passed in the Civil Application, Letters Patent Appeal No.1450 of 2015 came to be preferred by the same appellant. By order dated 17th February, 2016 passed in common in both the Letters Patent Appeals, the Hon'ble Division Bench while observing that Letters Patent Appeal No.1451 of Page 2 of 16 HC-NIC Page 2 of 16 Created On Sat Mar 12 02:21:08 IST 2016 C/CA/12037/2015 CAV ORDER 2015 ceased to survive, required to dispose of Civil Application for vacating interim relief No.12037 of 2015 preferably on or before 08th March, 2016. 2.2 As the parties wanted to file the replies and the pleadings were exchanged, they were allowed which led to passage of days.
3. For considering the question of vacation or otherwise of the interim relief, visiting with the relevant facts would be necessary. As stated above, the original petitioners in the Special Civil Application prayed for canceling the development permission issued for development of land bearing Revenue Survey Nos.175, 176 and 181-Final Plots Nos.37+46 as per Draft Town Planning Scheme No.7 (Sargasan-Kudasan-Por), Sargasan, District Gandhinagar. It is also prayed to demolish the construction put up on the land, stating that the same is in breach of order dated 15th December, 2010 passed by this Court in Second Appeal No.121 of 2010. It was prayed to direct to allot Final Plot as per revenue records by making appropriate change in Form-F prepared under the Town Planning Scheme in question etc. Interim relief has been prayed seeking stay on the construction activity going on upon the land in question.
3.1 The case of the petitioners stated in nutshell is that they belong to Chamar community; the community members are socially economically and educationally deprived class staying at Village Sargasan since decade and the agricultural lands being Page 3 of 16 HC-NIC Page 3 of 16 Created On Sat Mar 12 02:21:08 IST 2016 C/CA/12037/2015 CAV ORDER Survey Nos.175, 176 and 181 were allotted to the community for their livelihood since long, and their members have been cultivating the same enjoying the possession. The Town Planning Scheme in question was floated and the draft scheme was sanctioned. As the construction activity began on the portion of the land, upon an application made under the Right to Information Act, the petitioners were furnished information to know that respondent No.9 was granted development permission dated 09th December, 2014 in respect of 11891 Sq. Mtrs. of land comprised in the proposed Original Plots further proposed to be converted into Final Plots Nos.95, 104, 128/1, 56.
3.2 It is the case of the petitioners that one Revaben Chauhan-respondent No.8 through her power-of- attorney filed an application before the Principal Senior Civil Judge, Gandhinagar for obtaining probate which application came to be rejected on 16th January, 2006. Against that order Miscellaneous Civil Appeal No.64 of 2006 came to be allowed by order dated 30th July, 2006 by the first appellate court. The said order allowing the appeal has been challenged by some of the members of the community by preferring Second Appeal No.121 of 2010 before this Court, which appeal came to be admitted after condoning the delay and order of status quo in respect of the same parcels of land has been granted. According to the petitioners, the effect of he orders of the Court is given in the revenue records. The petitioners have challenged the action of the authorities contending that while preparing the Draft Town Planning Scheme No.7, the Page 4 of 16 HC-NIC Page 4 of 16 Created On Sat Mar 12 02:21:08 IST 2016 C/CA/12037/2015 CAV ORDER land records has not been taken into consideration, and further that the land in respect of which the development permission is granted, are the same survey number inward in the Second Appeal.
4. According to submission of learned Senior Counsel Mr.Mihir Thakore with learned advocate Mr.Parthiv Shah for the applicant-original respondent No.9, the Town Planning Authority has granted development permission in respect of area comprised of Final Plot Nos.56+95+104-128/1 which is allotted to respondent No.9. It was submitted that the said Final Plot is distinct from original Plot Nos.37, 38 and 46 formed out of Original Survey Nos.175, 176 and 181. It was submitted that on the part of portions of Survey No.176-Original Plot No.38 and Survey No.181-original Plot No.46 interlopes the Final Plot of respondent No.9. It was submitted that the construction permission is granted in respect of Final Plot which is to be allotted to respondent No.9, in which no right is claimable by any other person.
4.1 It appears that respondent No.9 purchased four different blocks of Survey Nos.406/1/2, 184, 398/1 and 392 from different owners, as per the details mentioned in paragraph 3 of the application. They were included in the Town Planning Scheme converted into different Final Plots. Development permission was granted on 26th August, 2014 and revised development permission was granted on 9th December, 2014. It is averred in the application that from the date of permission, during the succeeding eleven Page 5 of 16 HC-NIC Page 5 of 16 Created On Sat Mar 12 02:21:08 IST 2016 C/CA/12037/2015 CAV ORDER months, substantial construction, which is a residential scheme, has been completed. It was submitted that the applicant is concerned with Final Plot allotted to him and not the lands which subject matter dispute in Second Appeal No.121 of 2010 which, according to the applicant-respondent No.9, is Final Plot Nos.37+46 different than the area where the development permission is granted.
4.2 In addition to urging as above for pressing the plea for vacating the interim relief, learned Senior Counsel further submitted vehemently that the petitioners do not have any right to maintain the petition, much less for getting an interim order. Learned Senior Counsel extensively referred to the affidavit-in-reply (page 52) filed by respondent No.8- the original owner to buttress his submission that the petitioners lack locus standi. The submissions on this count are not mentioned with further details so as not to burden this order, as the factual details submitted stand elaborated in the pleadings.
4.3 On behalf of the petitioners, learned advocate Mr.Kaushal Pandya, responding to the contention on the locus of the petitioners, submitted that the petitioners belong to the Chamar community and in such capacity they have been claiming the right in respect of the land in question. The litigation which has traveled to Second Appeal as above is by the members of their community and they are involved therein. He submitted that even in the order of the Hon'ble Division Bench in Letters Patent Appeal Page 6 of 16 HC-NIC Page 6 of 16 Created On Sat Mar 12 02:21:08 IST 2016 C/CA/12037/2015 CAV ORDER No.1536 of 2010 and by relying on the observations in paragraphs 3 and 6, it was submitted that the petitioners' status as members of chamar community were accepted. It was submitted that in that view and in view of the aforesaid pending Second Appeal, petitioners have locus standi. It was submitted that at this stage, when the rights of the of many of the parties are not final in the Town Planning Scheme, respondent No.9 cannot be permitted to proceed with construction and create for himself new rights and equities.
4.4 On behalf of respondent No.2-Gandhinagar Urban Development Authority, affidavit-in-reply is filed contending inter alia that opinion of the Town Planning Officer was sought for with regard to the application of the applicant-respondent No.9 for granting of development permission and having regard to the opinion given, as per the Rules and GDCR, development permission in respect of area admeasuring 11,191 Sq. Meters with respect to Final Plot Nos.56+95+104+128/1 came to be granted.
5. From the map produced by learned Senior Counsel for the applicant, the position was clear that in the total area of land forming cluster of Final Plots in respect of which the development permission is granted to the applicant-respondent No.9 by the Town Planning Authority, includes within it the part of area of original Survey Nos.176 and 181. These survey numbers are the subject matter land in dispute in the said mentioned Second Appeal pending before Page 7 of 16 HC-NIC Page 7 of 16 Created On Sat Mar 12 02:21:08 IST 2016 C/CA/12037/2015 CAV ORDER this Court in which for the same survey numbers, the order of status quo has been operating; although it is true that subsequently Survey Nos.175, 176 and 181 came to be treated in the Town Planning Scheme No.7 (Sargasan-Kudasan-Por). It may also be that the town planning authorities are not parties in the said litigation. But then, there is no running away from the fact that the very land involved in Second Appeal is subject matter of development permission which reason was mentioned by the Court in the order granting status quo. Undoubtedly, this is a germane aspect to be weighed in respect of interim relief against carrying on the construction activity on the lands in question.
5.1 The order passed in Civil Application No.6605 of 2010 in the aforementioned Second Appeal No.121 of 2010 reads as under.
"Rule. Learned counsel, Mr.S.M. Shah waives service of notice of rule on behalf of the respondent.
Heard learned counsel appearing for the respective parties.
Learned counsel, Mr.Shah has stated that interim relief may not be granted and his statement may be recorded that his client, who is present in the Court, will undertake that it will not be sold or transferred without prior permission of the concerned Court.
Though the aforesaid submission is made and when the Second Appeal is pending, by any such undertaking with a rider to get permission may further complicate the issued.
Therefore, the parties are directed to maintain status quo of the land till final disposal of the Second Appeal. Accordingly, the present Civil Application stands disposed of. Rule is made absolute."Page 8 of 16
HC-NIC Page 8 of 16 Created On Sat Mar 12 02:21:08 IST 2016 C/CA/12037/2015 CAV ORDER 5.2 The draft stage at which the Town Planning Scheme is poised and the applicable provisions of the Gujarat Town Planning and Urban Development Act, 1976 bear equal, if not greater pertinence. Under the Act, the application of permission for development may be made under Section 27 whereas Section 28 is about permission for retention or continuance of use of any building or any work or any use of land. Under Section 29 of the Act the appropriate authority may grant, refuse to grant or grant on conditions as may be prescribed, the permission to develop. The appropriate authority is empowered to modify or even revoke the permission granted under Section 29 to the extent as may be necessary having regard to the variation made in the final development plan. The Town Planning Scheme under the Act has its stages broadly divided into the proposals of the Scheme dealing with the rights of the property owners, which proposals may be translate into draft scheme. The objections of the land owners are provided to be considered by the authority, whereafter the final boundaries for various original plots would be drawn and determined by the Town Planning Officer who would accordingly draw the Preliminary Scheme. Under Section 65, the State Government will sanction or refuse to sanction the Preliminary Scheme or the final Scheme, as the case may be. A sanctioned scheme will result into issuance of Notification issued in that regard. Section 67 says about the effect of Preliminary Scheme on the day on which such scheme comes into force. It is on such date of coming into force of Preliminary Scheme that the Page 9 of 16 HC-NIC Page 9 of 16 Created On Sat Mar 12 02:21:08 IST 2016 C/CA/12037/2015 CAV ORDER lands treated in the Town Planning Scheme shall vest in the appropriate authority and all rights in the original plots which have been reconstituted into the Final Plots shall determine. The Final Plots so settled by the Town Planning Officer. Even after the final sanction to the Scheme, the Scheme can be varied by the State Government.
5.3 In Modinagar Cooperative Housing Society Limited Vs State of Gujarat [2006 (03) GLR 2020], this Court brought out the position of law in relation to the relevant provisions of the Gujarat Town Planning and Urban Land Development Act, 1976 that until the Town Planning Scheme is made final and finally sanctioned, it cannot be said that the person in whose favour land is allotted in the Scheme acquires absolute ownership rights. In that case, Draft Town Planning Scheme to be sanctioned by the State Government and in anticipation of the sanction, Gandhinagar Urban Development Authority granted development permission in favour of the petitioners in respect of the proposed Final Plot on certain conditions. The Court observed that the petitioners cannot be said to have become absolute owners of the Final Plot proposed for them in the Draft Scheme. It was held that it is advisable and proper to wait till the Preliminary Scheme comes into force and the same is sanctioned and finalised. Decision in Modinagar Cooperative Housing Society (supra) was followed in another decision in Dharmendrakumar Dahyabhai Patel Vs Ahmedabad Urban Development Authority being Special Civil Application No.2054 of 2010 decided on Page 10 of 16 HC-NIC Page 10 of 16 Created On Sat Mar 12 02:21:08 IST 2016 C/CA/12037/2015 CAV ORDER 15th March, 2011 in which development permission granted by the authority was set aside which was at the Draft Town Planning Scheme. Letters Patent Appeal No.285 of 2015 against the said order came to be dismissed, however it was stated that a Special Leave Petition is pending before the Apex Court.
5.4 Learned advocate for the original petitioners referred to decision of this Court in Girishbhai Nagjibhai Savaliya Vs State of Gujarat being Special Civil Application No.15458 of 2013 and other petitions decided on 08th August, 2014, wherein the aforementioned decisions in Modinagar Cooperative Housing Society Limited (supra) and Dharmendrakumar Dahyabhai Patel (supra) were referred to and were distinguished on facts. In that case, decision of the Apex Court in Chairman, Indore Vikas Pradhikaran Vs Pure Industrial Coke and Chemicals Limited [(2007) 8 SCC 705]. In the case of Girishbhai Nagjibhai Savaliya (supra), pertinently, as was observed in paragraph 17 of the decision of this Court, there was no dispute either of ownership or occupancy and/or possession and the said aspects were undisputed. It was in the context observed that the law or the decisions in Modinagar Cooperative Housing Society (supra) and Dharmendrakumar Dahyabhai Patel (supra) put any embargo in considering and deciding the application for seeking permission of development under Section 27 of the Gujarat Town Planning Act or under Section 29 of the Act unless draft or Preliminary Scheme has not received sanction of the authority. It was held that such application has to be Page 11 of 16 HC-NIC Page 11 of 16 Created On Sat Mar 12 02:21:08 IST 2016 C/CA/12037/2015 CAV ORDER considered and decided by the competent authority keeping in mind the provision of Section 29 of the Act, 1976 and restriction imposed under Section 26 of Chapter IV of the Act irrespective of the fact that the draft or Preliminary Scheme may be awaiting the sanction of the State Government. The final directions issued by the Court in that case was to direct the authority to consider and decide the application afresh preferred under Section 27 of the Act expeditiously and keeping in mind the provision of Section 29, providing further that such application for development plan have to be in conformity with the Act, the Rules and the proposals of the final development plan which may be sanctioned.
6. The present case stands on its own facts and the question has to be determined in the context of the facts of the case. The Town Planning Scheme involving the lands in question is at the draft stage. There is no gainsaying that at the stage of Draft Scheme, as the T.P. Scheme No.7 in the present case is, the rights of the land owners can be said to be subject to the final drawing of the Preliminary Scheme-a stage yet to reach. Their rights are not therefore absolute. All the Final Plots indicated or demarcated in the Scheme in question including the cluster of Final Plots proposed to be allotted to respondent No.9 and in respect of which the development permission is granted to the said party, are the proposals in the Draft Scheme only. The rights qua the Final Plots in question have not finally settled in favour of respondent No.9, and as a matter Page 12 of 16 HC-NIC Page 12 of 16 Created On Sat Mar 12 02:21:08 IST 2016 C/CA/12037/2015 CAV ORDER of fact for any holder of the land forming part of the Scheme. The ownership of the Final Plots has not been vested. The final rights can settle only after Preliminary Scheme is drawn and finalised.
7. The development permission granted to respondent No.9 was preceded by the opinion of the Town Planning Officer, T.P. Scheme, GUDA, Division-1, given to the Chief Executive Officer of Gandhinagar Urban Development Authority. From the conditions mentioned in the said communication/opinion dated 15th April, 2014 (Annexure-C, Page 19 to the compilation of the Civil Application) it is clearly discerned that Condition No.4 that the opinion regarding grant of development permission was with reference to the lands comprised in the area of original plots only falling in the T.P. Scheme. In Condition No.6 it is further made clear that the boundaries, area, measurement and the actual site situation of the Final Plots indicated in the lay-out plan are subject to the final decisions which may be taken and the changes which may be effected therein by the Town Planning Officer at the time of drawing the Preliminary Scheme. It necessarily implies that the Final Plots shown in the layout plan considered for the purpose, are the proposed Final Plots subject to the Preliminary Scheme which is yet to be drawn and in which such plots may undergo alterations. Thus the development permission granted at the juncture when the Draft Scheme is yet to be converted into Preliminary or Final Scheme, is subject to the non-negotiable conditions of compliance of the provisions of the Town Planning Act, the varied Page 13 of 16 HC-NIC Page 13 of 16 Created On Sat Mar 12 02:21:08 IST 2016 C/CA/12037/2015 CAV ORDER proposals, if any, which may be prescribed at the time of drawing and sanctioning the Preliminary or the Final Town Planning Scheme by the authority concerned. In Girishbhai Nagjibhai Savaliya (supra) also, the relief which was finally granted was on the very lines of law. No land owner, much less respondent No.9, can therefore claim absolute or crystalised right in his favour in respect of the proposed Final Plots.
8. At this stage it may be stated that when learned Assistant Government Pleader was asked to inform as to what was the stage and the state of objections to the Draft Scheme, he was unable to furnish precise details but only stated that the Draft Scheme was already over. Affidavit-in-reply filed on behalf of the Town Planner was not found on the record of the petition. In furnishing relevant facts and details, the approach of the said authority appeared to be casual. Be as it may. It only when the Town Planning Officer proceeds to draw the Preliminary Scheme and thereby settles the rights of the plot holders in the Scheme, final picture for processing and considering the rights of the parties may emerge. As far as the submission on behalf of the applicant that the petitioners do not have locus standi to maintain the petition and on that count the interim relief is required to be vacated, cannot be accepted as holding good without it being finally examined in detail in the main petition. For not vacating the interim relief, there are overriding aspects and circumstances mentioned hereinabove.
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HC-NIC Page 14 of 16 Created On Sat Mar 12 02:21:08 IST 2016
C/CA/12037/2015 CAV ORDER
9. Summarizing from the foregoing discussion
and reasons, firstly, there are contending claims
about the ownership of the land bearing Survey
Nos.175, 176 and 181; the claim for obtaining Probate in respect of the said land is a subject matter pending in the Second Appeal mentioned above, in which the interim order for maintaining status quo involving the said survey numbers operate. This aspect is relevant and has to be accepted to be accounted for in dealing the question of interim relief. Not only that, in the third place, as seen above, the Town Planning Scheme No.7 (Sargasan-Kudasan-Pore) is at the Draft stage and the rights in respect of the lands covered thereunder are yet to be settled; there is no final vesting of ownership with respondent No.9 for the proposed Final Plots in relation to which the development permission is granted.
9.1 Amid the dispute as to the rival claims of ownership of the lands in question on one hand, and on the other, the Town Planning Scheme at a Draft stage pending the final drawing of the Preliminary Scheme, therefore, liable to witness changes in the constitution of the Final Plots, it is not possible to accept the prayer of the applicant-respondent No.9 to vacate the interim order of status quo granted on 30th October, 2015. The applicant cannot be permitted to continue with the construction activity on the land in question and bring about irreversible situation. Allowing such free-hand to the applicant would not only create new equities, it would lead to multiplicity of proceedings and even generation of Page 15 of 16 HC-NIC Page 15 of 16 Created On Sat Mar 12 02:21:08 IST 2016 C/CA/12037/2015 CAV ORDER litigations in respect of subject matter land. When the position of law is defined as above, and all the aforesaid aspects of facts and law taken together, the prima facie case strongly arise for continuing and maintaining the status quo; the considerations of irreparable loss and balance of convenience hardly tilting in favour of the applicant.
10. Therefore order dated 30th October, 2015 passed by this Court sands confirmed subject to final outcome of the petition. The present application for vacating the interim relief is rejected.
(N.V.ANJARIA, J.) Anup Page 16 of 16 HC-NIC Page 16 of 16 Created On Sat Mar 12 02:21:08 IST 2016